e-Discovery Docket Sheet

In a patent-infringement suit, the plaintiffs argued that the defendant's claims should be dismissed based on the defendant's adoption of a document-retention policy that resulted in the destruction of potentially relevant electronic and paper documents. Prior to filing the litigation at issue, the defendant developed a document-retention policy requiring the destruction of e-mail contained on backup tapes after 3 months. In addition, the defendant held several “Shred Days” during which employees were instructed to follow the retention-policy guidelines to determine what to keep and what to throw away. In assessing the plaintiffs' argument, the court noted that the evidence failed to show that the defendant targeted any specific document or category of relevant documents with the intent to prevent production in the upcoming lawsuit. The court further found that the defendant's adoption of the policy was not designed to prevent the plaintiffs from obtaining evidence that would be helpful to the plaintiffs' defense. For these reasons, the court declined to accept the plaintiffs' argument and declared, “[The defendant's] adoption and implementation of its content neutral Document Retention Policy in mid-1998 was a permissible business decision…[and] did not constitute unlawful spoliation.” Hynix Semiconductor, Inc. v. Rambus, Inc., No. C-00-20905 RMW (N.D.Cal. Jan. 4, 2006).

In a breach-of-contract claim relating to the defendant's NASCAR team, the plaintiff sought sanctions against the defendant for destroying relevant e-mails. In defending its actions, the defendant claimed that its computer system was set up to delete internal and external e-mails automatically, unless affirmative efforts were taken to preserve them. As a result of the automated deletion, internal e-mails from key custodians were “irretrievably lost.” One key individual testified that he was never instructed to preserve relevant communications, even after the lawsuit commenced. In considering whether sanctions were justified, a magistrate judge declared “[s]uch normal procedures for destruction of documents must … be suspended when a party is on notice that they may be relevant to litigation, and the failure to make an adequate search of such documents before their destruction may be evidence of bad faith.” Although ultimately finding that the defendant's actions amounted to negligent spoliation and did not show evidence of bad faith, the magistrate found that sanctions would be appropriate and recommended that the trial court issue an adverse-inference instruction and an order allowing the plaintiff to present evidence of the spoliation. DaimlerChrysler Motors v. Bill Davis Racing, Inc., 2005 WL 3502172 (E.D. Mich. Dec. 22, 2005).